Opponents of President Trump’s plan to build the U.S.-Mexico border wall using funds obtained through the president’s emergency declaration will likely have an uphill battle, Reuters reports. Legal analysts point out that regardless of how challenges to the emergency declaration play out across the judicial system, Trump has at the end of that road a distinctive advantage: the Supreme Court.
The right-leaning makeup of the court has shifted meaningfully over the years, not inconsequentially through two staunchly conservative picks nominated by Trump himself. Trump appointees Neil Gorsuch and Brett Kavanaugh could very well join other conservative members of the court in defending the constitutionality of the emergency declaration, which is the first declaration since 2001 to include military action. Chief Justice John Roberts, who has generally been found to be the divided court’s swing vote, could ultimately break the tie.
Legal experts predict that any challenge to the declaration could ultimately play out in a manner very similar to the travel ban instituted early in the Trump presidency, which ultimately ended in the president’s favor with the Supreme Court largely deferring to a sitting president on matters of national security and immigration, arguments very much in line with Trump’s current defense of his wall funding.
“Courts are reluctant to second-guess the president on matters of national security,” said Peter Shane, a professor at Ohio State University’s Moritz College of Law, who predicts that the wall funding will likely be upheld if it makes it to the Supreme Court.
Trump declared a national emergency today, the only one since the Sept. 11 terrorist attacks that calls for military action. See the full list of emergencies: https://t.co/fFqulYBfSO
— NYT Graphics (@nytgraphics) February 16, 2019
Even so, a number of Democrats, activists, and state attorneys general have already expressed their intent to fight the emergency declaration. The response from the opposition was expected, and has not deterred the president.
“I’ll sign the final papers as soon as I get into the Oval Office and we’ll have a national emergency and then we’ll be sued,” Trump said.
Regardless, the political football that has been the border wall since Trump made it an issue central to his election campaign will likely remain in play for the foreseeable future, up to and beyond any reelection bid that the president could face in 2020.
“My guess is the money, the significant amount of money, won’t flow before the 2020 election,” Harvard Law School professor Mark Tushnet said, pointing out the potential long road ahead in the battle over wall funding.
Such a significant delay could allow Trump to once again build a presidential campaign around the issue of a border wall, though at that point the president will also be approaching four years of failing to deliver on its promised construction.